Master Services Agreement - Updated September 2022
We have been busy reviewing our processes and workflows in preparation for the upcoming holiday season. As a part of our ongoing improvements, we will now be asking that all clients sign a new Master Services Agreement each year. This agreement outlines the services that eFulfillment Service offers, our mutual responsibilities, and the standard terms and conditions required by companies working together.
Fill in Client Company Name (required):
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Check to confirm that you have the full right, power, legal capacity and authority to enter into, and fully perform, under this MSA and that its performance hereunder will fully comply with all applicable laws, rules and regulations. (required)
This Master Services MSA (“MSA”) is entered into by and between eFulfillment Service, Inc., a Michigan Corporation (hereafter “EFS”), and Client, as identified on the last page hereof (individually referred to as a “Party” and collectively “Parties”). In exchange for the mutual promises contained herein, and for good and valuable consideration the sufficiency and receipt of which is hereby acknowledged, the Parties agree to be legally bound as follows:
1. Master Service Agreement
This MSA and your company’s Pricing for Services sheet (hereinafter “PFS”), collectively referred to as the “MSA,” will define EFS and the Client’s obligations to each other with respect to EFS’s performance of merchandise receipt, storage, assembly, order fulfillment, shipment, return processing, and custom programming (collectively “Services”) for and/or on behalf of Client. To get a copy of your Pricing for Services sheet, please contact your account representative through the Zendesk System. Each PFS submitted by EFS to Client shall be governed by this MSA and incorporated herein by reference. EFS reserves the right to change pricing terms at any time upon thirty (30) days prior written notice to Client. In the event that EFS changes its pricing terms (“Pricing Change”) and Client disagrees with such Pricing Change, Client must discontinue its use of EFS Services prior to the implementation of the Pricing Change or Client will be billed for any Pricing Change. Pricing Changes may be communicated to Client through email, mail, or posted on EFS’s website. The execution of this MSA by Client is construed as an acceptance of all rates, prices, terms, and conditions under which the Services will be performed and listed in the attached PFS. Except as where otherwise stated in the terms of this MSA, modifications to this MSA or any attached PFS will not be binding unless acknowledged and agreed to in a writing. In the event any term, provision, or condition of this MSA conflicts with any term, provision, or condition of any PFS, the terms of the PFS shall control.
2. Client’s Obligations
Client shall provide the necessary goods to allow EFS to perform the Services (hereinafter “Client Goods”). Client shall also provide EFS with all trademarks, logos, or artwork owned or licensed by Client that is needed to perform the Services and, in the event EFS provides custom programming services for Client, Client shall also provide access to computers, software, shopping cart systems, hardware, servers, programming manuals, software development kits, and code, if required, to allow EFS to perform the Services (collectively “Client Materials”). Client agrees to allow EFS to make changes or alterations to Client Materials solely for the purpose of performing the Services hereunder.
Client assumes all liability for all Client Goods and Client Materials it provides for use in or in connection with the Services provided under this MSA. EFS will not modify the software of third parties, including, but not limited to third party cart providers.
Client understands that it is required to accompany all Client Goods delivered to EFS with a packing slip that lists the number of skids or cartons, the quantity per skid or carton, the corresponding SKU numbers, and the quantity per SKU. Multiple items may not be included within a single container unless noted thereon and on the accompanying packing slip. Client understands and agrees that all Client Goods must be individually SKU coded and, if they are not, EFS will provide individual SKU labels at an extra cost to Client. EFS will not be held responsible for the delivery of Client Goods to EFS and, in the event EFS pays Client’s freight for the delivery of Client Goods to EFS, Client agrees to reimburse EFS for its payment of freight for the delivery of Client Goods to EFS.
Upon Client’s termination of EFS’s Services pursuant to the terms of this Agreement, Client will be responsible for removing Client Goods from the possession of EFS and will be responsible for paying any and all fees and costs associated with the close out process, which are listed within EFS’s published Close Out Fee Schedule, and the return of Client Goods. Client must pay all outstanding invoices prior to the release of Client Goods from EFS’s possession. Client understands that it is solely responsible for providing EFS with instructions for disposing of Client’s Client Goods whether on termination of this Agreement or otherwise (hereinafter “Abandoned Goods”). In the event Client fails to remove Abandoned Goods from EFS’s premises within ten (10) days after the termination of Services, EFS will be entitled to and may charge reasonable storage fees for any remaining Abandoned Goods within its care. In the event Client fails to remove Abandoned Goods from EFS’s premises within ninety (90) days after the termination of Services, EFS will acquire a warehouseman’s lien in and liquidate the Abandoned Goods without recourse to Client or third party creditors pursuant to Article 7 of the Michigan Uniform Commercial Code. In the event Abandoned Goods cannot be liquidated, Client will be responsible for any costs or fees associated with the destruction of Abandoned Goods.
In the event EFS’s Services are terminated due to Client’s breach of any term or condition of this Agreement, EFS will immediately acquire a warehouseman’s lien in all Client Goods proportionate to EFS’s damages, costs, or fees and pursuant to Article 7 of the Michigan Uniform Commercial Code. In the event EFS’s Services are terminated due to Client’s breach, EFS may immediately liquidate Client Goods to pay any damages, costs, or fees incurred by EFS as a result of Client’s breach pursuant to MCL 440.7210. In the event Client Goods cannot be liquidated upon breach, Client will be responsible for any costs or fees associated with the destruction of Client Goods.
All Client instructions to EFS must be in writing and made via email, mail, the EFS support ticket system, or by manual order entry or automatic data upload into the EFS fulfillment control panel. EFS will not be held liable or responsible for loss resulting from Client order entry errors, incorrect shipping via codes, COD or insurance entry errors, file upload errors, mechanical breakdown, common carrier failures, or other events that are outside of the control of EFS.
In the event EFS provides Client with custom design, programming, modules, plugins, or custom shopping cart integration (“Custom Programming”), the ultimate responsibility for the functioning of the Custom Programming rests with Client. Client understands and agrees that it is solely responsible for regularly reviewing, auditing, assessing the functionality of all Custom Programming, and EFS will not be held liable or responsible for any failure or inaccuracy of any Custom Programming.
Client hereby grants to EFS a non-exclusive, limited, worldwide, royalty-free, sub-licensable, and revocable license to display, copy, reproduce, prepare derivative works of, distribute, perform publicly, perform via means of audio transmission, modify, test, transmit, track, and distribute the Client Materials in connection with EFS’s performance of Services hereunder.
b. Non Solicitation
Client agrees that during the term of this MSA, including any subsequent renewal period(s), and for two (2) years after the date of termination of this MSA with EFS, Client will not induce, solicit, recruit, or encourage any employee, independent contractor, or subcontractor of EFS to leave the employ of EFS, which means that Client will not: (i) disclose to any third party the names, backgrounds, or qualifications of any EFS employees, independent contractors, or subcontractors or otherwise identify them as potential candidates for employment or engagement; or (ii) personally or through any other person or entity approach, recruit, interview, or otherwise solicit EFS employees to work for or contract with Client or any other employer.
c. User Account.
EFS may provide Client with the ability to register a user account, which may provide access to EFS’s Services (“User Account”). Client’s User Account is protected by a username and password. Client recognizes that Client is solely responsible for maintaining the security and confidentiality of its username and password and that Client is responsible for any unauthorized access to Client’s User Account. In the event Client’s user account is accessed without Client’s authorization, Client agrees to notify EFS immediately. Client reserves the right to restrict access to, suspend, disable, or delete Client’s User Account at any time, in its sole discretion, and without prior warning.
EFS agrees to provide Services under the terms and conditions of this MSA. The Services to be performed by EFS will be described in one or more PFS(s). By executing this MSA, Client and EFS agree that the Services are subject solely to the provisions of this MSA and the applicable PFS. Each PFS will become effective and incorporated herein when this MSA is signed by Client. EFS will make commercially reasonable efforts to notify Client within fourteen (14) business days of its receipt of this signed MSA if the specified subject matter or inventory of the PFS is not available.
In performing Services hereunder, EFS expressly reserves the right to: (i) in its sole discretion, refuse to provide any Services due to Client’s provision of Client Goods or Client Materials that do not conform to the reasonable requests or requirements of EFS; and (ii) terminate, refuse, or cancel the storage, shipping, assembly, order fulfillment, return processing, or use of any Client Goods or Client Materials for any reason including those it believes, in its reasonable discretion, are inappropriate for any reason or violate any ordinance, law, regulation, statute, or treaty. EFS will notify Client of the rejection or cancellation and shall have no liability to Client for any such rejection or cancellation.
Client understands and agrees that the price quotations contained within the attached PFS are based on specifications provided by Client and agreed to by EFS on the date of the execution of this MSA. In the event Client changes its specifications during the term of this MSA, EFS may adjust its pricing accordingly. If EFS adjusts the prices contained within the PFS in response to a change in Client specifications, it will provide Client with ten (10) days prior written notice of said change. (Note: Prices for storage, pick and pack services and shipping are based on client order volume, and change automatically and are updated weekly. These automatic price updates aren’t subject to advance notice.) Client’s failure to object to any price change prior to its implementation will constitute Client’s acceptance of said change and a mutual modification of this MSA. In the event Client objects to the requested price change, EFS reserves the right to terminate this MSA without cause or penalty.
Client understands and agrees that EFS reserves the right to change the pricing reflected in the attached PFS at any time and within its sole and absolute discretion upon thirty (30) days prior written notice. In the event of a price change, EFS may provide Client with notice of said change through email or the Client’s fulfillment control panel welcome page. Client’s failure to object to any price change within thirty (30) days will constitute Client’s acceptance of said change and a mutual modification of this MSA. In the event Client objects to the requested price change, EFS reserves the right to terminate this MSA without cause or penalty.
Client understands and agrees that it will be required to provide reimbursement to EFS for postage and freight charges as stated in the PFS. These charges will be based on publicly published UPS, DHL FedEx, and USPS rates (hereinafter “Shipping Rates”). EFS may, in its sole and absolute discretion, increase or discount these Shipping Rates, and such increases or discounts will be reflected in the attached PFS.
Client further understands and agrees that EFS’ performance of the Services hereunder is expressly made conditional upon Client’s adherence to the terms and conditions of EFS’s third party shipping partners, such as UPS, DHL, FedEx, and USPS. Client is advised to review all third party terms and conditions, and Client’s failure to comply with the terms or conditions of a third party may result in EFS’s termination of this MSA in its sole and absolute discretion.
Client understands and agrees that the prices quoted in the attached PFS presume that Client will use EFS’s standard cartons, envelopes, and packaging materials. Client understands and agrees that the cost of standard packaging materials varies as suppliers adjust their pricing and terms and that EFS may change the costs associated with EFS’s standard cartons, envelopes, and packaging materials at any time and within its sole and absolute discretion. Client acknowledges that it is responsible to pay any increases in the cost of EFS’s standard cartons, envelopes, and packaging materials. Client further acknowledges that the use of custom packing materials may involve additional material and labor charges, and Client acknowledges that it is responsible to pay any additional material or labor charges associated with custom packing materials.
Client further acknowledges that it may be subject to fuel surcharges associated with EFS’s use of third party carriers, such as UPS, DHL, USPS, and FedEx. Client understands and agrees that these fuel surcharges are index-based surcharges that are adjusted monthly by each respective carrier and that Client will pay any and all fuel surcharges assessed by third party carriers for the carriage of Client Goods.
Client may retain EFS to receive and process returns from Client’s customers (hereinafter “Return Services”). In the event Client retains EFS for Return Services, Client acknowledges that Return Services will be subject to additional fees and terms. In providing Return Services, EFS will provide a visual inspection of each returned item, hold rejected stock for up to ninety (90) days, return good stock back to active inventory, and provide the client with a return report by email for each return shipment. Client acknowledges that EFS will not be held liable or responsible for loss resulting from customer fraud, return short counts, transit damage, merchant account fees, disputes between the client and third parties, or for any other claim, demand, charge, judgment, or liability arising out of or related to EFS’s performance of Return Services on behalf of Client.
Client retains title to and the insurable interest in its Client Goods throughout EFS’s performance of the Services and EFS does not provide insurance coverage for Client Goods or accept liability for any losses, damages, claims, demands, charges, judgments, or liabilities, including but not limited to loss resulting from transit damage, fire, water damages, theft, stock shrinkage, or count errors. Client expressly agrees to waive any right to insurance subrogation that it may have, whether known or unknown. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT WILL BEAR THE RISK OF LOSS FOR ALL CLIENT GOODS SHIPPED OR DELIVERED TO EFS AND WILL CONTINUE TO BEAR THE RISK OF LOSS UNTIL CLIENT GOODS ARE PERFECTLY TENDERED TO, AND TITLE PASSES TO, CLIENT’S CUSTOMER.
IN THE EVENT EFS IS LIABLE FOR ANY DAMAGES, CLAIMS, ERRORS, COSTS, OR FEES ARISING OUT OF ITS PROVISION OF SERVICES, INCLUDING, BUT NOT LIMITED TO, MISDIRECTED OR ERRONEOUS SHIPMENTS, PICK AND PACK ERRORS, RECEIVING ERRORS, INVENTORY SHRINKAGE (TYPICAL EXPECTED RATE IS 3-5%), INVENTORY THEFT, COD ERRORS, INVENTORY DAMAGE, RETURN ERRORS, INVENTORY ERRORS, INVOICE ERRORS, OR STOCKING ERRORS (“SERVICE ERRORS”), CLIENT MAY SUBMIT A SINGLE REQUEST FOR RESHIPMENT OR LOSS COMPENSATION PER CLAIM, WHICH WILL BE DEFINED AS A CLIENT’S SINGLE CONTACT WITH EFS CUSTOMER SERVICE (“CLAIM”). ALL CLAIMS MUST BE MADE IN WRITING TO EFS AND MUST INCLUDE DOCUMENTATION SUPPORTING THE CLAIM. ALL CLAIMS MUST BE FILED WITHIN THIRTY (30) DAYS FROM CLIENT’S DISCOVERY OF THE CLAIM OR CLIENT’S CLAIM WILL OTHERWISE BE WAIVED. EFS’S LIABILITY TO CLIENT FOR SERVICE ERRORS IS LIMITED TO A VALUE OF $100 PER CLAIM AND IN NO CASE WILL EXCEED $1,000 PER YEAR REGARDLESS OF THE NUMBER OR SEVERITY OF CLAIMS FILED BY CLIENT. EFS RESERVES THE RIGHT TO WITHHOLD COMPENSATION FROM CILENT FOR ANY DAMAGES, CLAIMS, ERRORS, COSTS, OR FEES IN THE EVENT CLIENT HAS FAILED TO TIMELY PAY ANY OUTSTANDING INVOICE.
In performing Services hereunder, EFS may use third-party technology that accesses and/or interacts with Client’s Client Materials. EFS is not responsible, nor does it assume any liability, for any failure of any third-party technology, software or service to perform as intended. Client agrees to hold EFS harmless for any loss of data, errors, omissions, corruption of data, interruption of access, defects, or viruses that arise out of or in relation to EFS’s use of third-party technology.
In performing Services hereunder, EFS requires Client to apply bar code labels, or have EFS apply, EFS-supplied bar codes to Client’s goods. Should Client be unable to apply bar codes prior to shipment to EFS, Client understands that Client will be subject to labor and materials fees for EFS to apply bar code labels to products, so that the inventory system can track products inside our warehouse.
In performing Services hereunder, EFS requires Client to include a packing list with each inbound shipment to EFS. For each Stock Keeping Unit ("SKU") included within the shipment, the packing slip must outline the corresponding SKU number, SKU description, and SKU quantity. If Client is unable or unwilling to provide a packing slip with this information, Client agrees to hold EFS harmless for any receiving and inventory control errors, including, but not limited to, inventory count accuracy.
Client understands and agrees that EFS has no responsibility to insure or otherwise protect Client’s goods from loss, whether from fire, flood, breakage, theft, or otherwise. Notwithstanding the foregoing, EFS may choose, in its sole and absolute discretion, to reimburse Client for any loss caused by EFS without waiving its limitation of liability under the terms of this Agreement. In the event that EFS chooses, within its sole and absolute discretion, to reimburse Client for any loss, EFS will only reimburse Client for the wholesale value of Client’s goods, not to exceed $250 per item.
EFS reserves the right to refuse to receive any of Client’s goods at its warehouses, including, but not limited to, in those situations in which EFS discovers that Client’s goods may be damaged, defective, not authorized by the law, perished, or contain any toxic or hazardous material, such as mold or explosives. In the event EFS discovers, after receiving Client’s goods at its warehouses, that Client’s goods contain mold or any other hazardous material that may cause risk to EFS’ personnel or property or the personnel or property of third parties, EFS reserves the right to relocate or destroy the pallet of goods containing mold or any other hazardous materials in its sole and absolute discretion and without renumeration to Client of any kind.
4. EFS’s Intellectual Property Rights a. Ownership of Intellectual Property
Client understands and agrees that EFS is the owner of all intellectual property used in and created under the terms of this MSA, including but not limited to all trademarks, copyrights, and patents, whether registered or unregistered, and all trade secrets, ideas, designs, business methods, creative works, processes, and data (collectively “Intellectual Property”). In the performance of Services under the terms of this MSA, EFS may use its Intellectual Property in the creation of work product, which may include custom design, programming, modules, plugins, or custom shopping cart integration (“Work Product”). Client understands and agrees that EFS remains the owner of all right, title, and interest in and to both its Intellectual Property and any Work Product created for Client under the terms of this MSA.
Client understands and agrees that Client will promptly inform EFS of the full conception of and details of any and all inventions, discoveries, improvements, innovations, and ideas, whether or not patentable or protectable, that Client conceives of, completes, or reduces to practice that (a) relate to EFS’s Intellectual Property or (b) result from work done by Client using EFS’s equipment, facilities, materials, trade secrets, or personnel. Client hereby agrees that all inventions and discoveries that it might solely or jointly conceive, make, invent, or create during its contractual relationship with EFS and relating to EFS’s Intellectual Property are the absolute property of EFS and are hereby assigned to EFS, and Client hereby further agrees to assign to EFS its entire right, title, and interest in and to all patent applications and any resulting patents, including those applied for or issued in foreign countries, that disclose and/or claim such inventions and discoveries by Client that relate to EFS’s Intellectual Property. Client agrees to execute any and all documents necessary to prepare any papers that EFS may consider necessary or helpful to obtain or maintain any patents, copyrights, trademarks, or other proprietary rights in its Intellectual Property and will do so at no charge to EFS.
Client agrees that, during the term of this Agreement and thereafter, that it will not make statements, representations, or reviews, or otherwise communicate directly or indirectly, in writing, orally, or otherwise, to take any action which may directly or indirectly disparage EFS or any subsidiary or affiliate or their respective officers, directors, employees, advisors, businesses, or reputations. Notwithstanding the foregoing, nothing in this Agreement will preclude either Client or EFS from making truthful statements or disclosures that are required by applicable law, regulation, or legal process. Client understands and agrees that EFS’s address may serve as the return address for Client’s goods or services and, as a result, that EFS’s name or address may be reflected as Client’s address in online reviews, including, but not limited to, reviews on the following websites or sources: Better Business Bureau, RipOff Reports, Complaints Board, Food and Drug Administration, and Pissed Consumer. In the event EFS’s name or address is listed in association with a negative or disparaging review of Client’s goods or services (“Negative Reviews”), Client agrees to undertake any and all actions needed to modify, correct, or remove such Negative Reviews including, but not limited to, (1) providing EFS with its absolute cooperation in EFS’s efforts to have the Negative Reviews modified, corrected, or removed and (2) taking all necessary legal steps to have the identified Negative Reviews modified, corrected, or removed.
c. Non-Disclosure, Trade Secrets, and Confidential Information
Client understands and agrees that, in EFS’s performance of Services, Client may be exposed to EFS’s confidential information or trade secrets. For the purposes of this MSA, confidential information will include, without limitation, any of EFS’s confidential, proprietary, or trade secret information that is disclosed pursuant to this MSA or that Client otherwise learns in the course of EFS’s relationship with Client such as, but not limited to, Intellectual Property, Work Product, business plans or methods, proprietary information, financial information, ideas, customer information or lists, marketing interests or plans, operating processes or procedures, or assessment tools or procedures, or analysis tools or procedures (“Confidential Information”). Confidential Information will not include any information which: (i) is or becomes publicly available through no act of Client; (ii) is rightfully received by Client from a third party without restrictions; or (iii) is independently developed by Client. For the purposes of this MSA, trade secrets will include: (a) any and all of EFS’s proprietary designs, algorithms, blueprints, analysis tools, assessment tools, software, or business processes; (b) technical information concerning EFS’s company salaries, strengths, weaknesses, and skills;
(c) information concerning EFS’s finances, including sales information, profits, accounting information, unpublished financial information, and marketing expenditures; (d) information concerning EFS’s suppliers or customers, including customer lists, customer information, supplier lists, and supplier information; (e) information concerning EFS’s business strategies, including marketing plans, business plans, research projects, and product development; and (f) any other information not generally known to the public which, if disclosed, could reasonably be expected to adversely affect EFS’s business (collectively “Trade Secrets”).
Client agrees that it will not use EFS’s Confidential Information or Trade Secrets in any manner other than to enable Client’s receipt of Services under the terms of this MSA. Client agrees that it will not use, exploit, sell, copy, distribute, perform publicly, display publicly, reproduce, or prepare derivative works of the Confidential Information or Trade Secrets of EFS without the prior written approval of EFS.
Should Client reveal, threaten to reveal, use, exploit, sell, copy, distribute, perform publicly, display publicly, reproduce, or prepare derivative works of the Confidential Information and/or Trade Secrets of EFS, EFS will be entitled to an injunction restraining Client from disclosing the same, or from rendering any services to any entity to whom said Confidential Information and/or Trade Secrets has been or is threatened to be disclosed. The right to secure an injunction is not exclusive, and EFS may pursue any other remedies it has against Client for a breach or threatened breach of this condition, including the recovery of damages from Client.
Client agrees to act as a trustee of any Confidential Information and Trade Secrets learned pursuant to this MSA. When the parties have completed their relationship pursuant to this MSA, Client will promptly return all originals and copies of all materials containing any Trade Secrets and/or Confidential Information to EFS. Client will destroy any originals or copies of materials concerning EFS’s Trade Secrets and/or Confidential Information that cannot be returned to EFS upon the completion of the relationship between EFS and Client.
Client agrees that it will not disclose to EFS, use in EFS’s business, or cause EFS to use any information or material that is the trade secret or confidential information of another. Client warrants that its performance of this MSA will not breach any agreement to keep in confidence confidential information acquired by Client prior to its contact with EFS.
Client understands and agrees that its obligation to maintain EFS’s Confidential Information and Trade Secrets will remain in effect even after its contract with EFS ends and will continue for so long as the information remains either Confidential Information or a Trade Secret under applicable law.
5. Payment Terms
EFS shall provide Client with an invoice for EFS’s Services on Tuesday of each week. Each invoice will set forth a list of Services provided by EFS during the prior week and the associated fees for those Services. EFS will send Client notification via email indicating that Client’s current invoice is ready to be viewed. Client agrees to pay all invoices on Wednesday of each week. All invoices may be paid by credit card, wire transfer, ACH transfer, or by charge against a prepaid deposit. All invoiced fees are non-refundable.
Payment will be deemed late if not received by EFS on Wednesday of each week. Any late payments will accrue interest equal to the maximum amount allowable under law compounded monthly. Client’s failure to make full and timely payment will constitute a material breach of this MSA. EFS shall be entitled to recover all reasonable costs of collection, including but not limited to attorneys’ fees, expenses, and costs incurred in attempting to collect payment from Client.
EFS reserves the right to withhold delivery of any Services if payment is not made in full. Client understands and agrees that all payments must be made in US Dollars. In the event Client pays by credit card, Client expressly agrees that it will not charge back any payments made by credit card without the prior written consent of EFS. Client understands and agrees that it will be responsible for paying for any costs or fees incurred by EFS as a result of any credit card chargebacks initiated by Client.
All compensation made under this MSA will be paid without deductions or withholding. EFS will report as income to the appropriate governmental agencies all compensation received pursuant to this MSA and will pay to such agencies all taxes, which EFS is required to pay by law. Client understands and agrees that EFS will not be responsible for paying any taxes required by law to be paid by Client. To the extent that taxes are assessed against EFS for the actions or omissions of Client, Client agrees that Client will reimburse EFS for the payment of those taxes.
6. Term and Termination
The term of this MSA shall commence on the Effective Date listed below and continue until terminated pursuant to this Section. Termination of this MSA shall not relieve Client from its obligation to pay (i) any fees that have accrued prior to the date of termination; (ii) the pro-rata portion of any fees earned through work, specified in a PFS, for which the performance of Services has already occurred; (iii) the cost of any special goods or services purchased by EFS in the preparation for or the performance of Services; and (iv) the cost of returning Client Goods to Client. Client acknowledges and agrees that EFS has the right to hold and dispose of Client Goods pursuant to Section 2 above in the event outstanding invoices have not been timely paid.
Each Party may terminate this MSA and/or any PFS at any time and without cause.
Either Party may terminate this MSA and/or any PFS hereunder if the other Party is in material breach of this MSA and has not cured such breach within ten (10) calendar days of written notice from the non-breaching Party that specifies the breach.
EFS may terminate this MSA if, at any time, Client: (i) breaches any term or condition of this MSA or the incorporated PFS; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including but not limited to an involuntary bankruptcy; (iv) violates the rights of third parties, including but not limited to intellectual or other personal or proprietary rights; or (iv) voluntarily files a petition for bankruptcy.
Termination of this MSA hereunder will not limit either Party from pursuing any other remedies available to it, including injunctive relief. Any provision of this MSA that contemplates performance or observance subsequent to termination or expiration of this MSA will survive termination or expiration hereof and will continue in full force and effect.
7. Representations and Warranties
Client represents and warrants that it is responsible for any liability arising out of or relating to any Client Materials or Client Goods. Client represents and warrants that no part of the Client Materials or Client Goods will: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy;
(ii) violate any term of provision of this MSA; or
(iii) violate any law, statute, ordinance or regulation. Client represents and warrants that Client has all necessary titles, licenses, and clearances to use the content contained in its Client Goods and Client Materials. Client warrants and agrees to indemnify and hold harmless EFS for any costs, damages, claims, or losses that arise out of Client’s failure to comply with state or federal laws or regulations. Client understands and agrees that EFS provides order fulfillment services and will not be considered an endorser of any advertising or claims that are made by Client.
8. Mutual Warranties
Each Party represents and warrants that it has the full right, power, legal capacity and authority to enter into, and fully perform, under this MSA and that its performance hereunder will fully comply with all applicable laws, rules and regulations. Any agency executing this MSA on behalf of its client represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this MSA. If you are accessing or using the Services on behalf of a governmental organization, non-governmental organization, business, or other legal entity, you warrant that you are an authorized agent of that organization and have the authority to bind that organization to the terms of this Agreement.
Client agrees to indemnify and hold harmless EFS and its respective directors, officers, employees and agents from any and all losses incurred as a result of Client’s breach of the foregoing two sentences.
9. Disclaimer of Warranties and Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES PROVIDED BY EFS, THEIR USE, AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EFS MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, PANDEMIC, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. EFS WILL MAKE EVERY REASONABLE EFFORT TO MEET SCHEDULED OR ESTIMATED DELIVERY DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBiLITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, EACH PARTY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS CLIENT HAS PAID TO EFS UNDER THE APPLICABLE PFS.
The provisions of this Section are an essential element of the benefit of the bargain reflected in this MSA.
Client assumes full and complete responsibility and liability for the content of all Client Goods and Client Materials and will indemnify and hold EFS, its directors, officers, employees, and agents harmless from and against all demands, claims, or liability arising out of or relating to the Client Goods or Client Materials. Client warrants that its Client Goods and Client Materials will accurately confirm to Client’s descriptions and representations and will comply with all local, state, federal, and international laws concerning the advertisement and sale of goods or services. Client takes full legal responsibility for all transactions between Client and its customers, whether or not those transactions are facilitated by EFS’s Services.
Client understands and agrees that it will indemnify, defend, and hold harmless EFS, its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) claim by any third party that any Client Goods or Client Materials infringe a third party’s copyright, trademark, patent, trade secret, or other intellectual property rights; (ii) claim by any third party that any Client Goods or Client Materials violate the rights of a third party, are defamatory or obscene, or violate any ordinance, law, regulation, or other judicial or administrative action; or (iii) breach by the Client of any representation or warranty set forth in this MSA. A third party means any entity other than the parties to this MSA and their respective directors, officers, employees, and agents.
If any action is or will be brought against EFS with respect to any allegation for which indemnity may be sought, Client will provide reasonable cooperation to EFS, at Client’s expense, to defend against or settle any such claim. Client’s obligation to defend EFS under the terms of this MSA will not provide Client with the ability to control EFS’s defense, and EFS reserves the right to control its defense and select its counsel.
Any notice or other communication required or permitted hereunder shall be in writing, shall reference this MSA, and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) when sent by email, with confirmation of receipt; (e) two (2) business days after deposit with a nationally recognized express courier, with written confirmation of receipt. All notices shall be sent to the following addresses:
To eFulfillment Service, Inc.:
807 Airport Access Road Traverse City, MI 49686
Via contact information submitted to EFS.
Client may not assign, in whole or in part, any rights, obligations, or duties created by or under this MSA. EFS may assign its rights, obligations, or duties under this MSA at any time upon written notice to Client, including in a sale or transfer of all or substantially all of EFS’s assets, in a sale or transfer of EFS’s accounts, or in a merger of EFS with another company. Should EFS assign its rights, obligations, or duties under this MSA, EFS’s rights, obligations, or duties under this MSA will be binding on, and shall inure to the benefit of, its successor or assign.
If any provision of this MSA is held to be illegal, invalid, or unenforceable, and if the rights or obligations of either Party under this MSA will not be materially and adversely affected, (i) said provision will be fully severable; (ii) this MSA will be construed and enforced as if said provision had never comprised a part of this MSA; (iii) the remaining provisions of this MSA will remain in full force and effect and will not be affected by the severance of any provision; and (iv) there will be added a legal, valid, and enforceable provision as similar in terms to said provision as may be possible in lieu of said provision.
14. Choice of Laws
This MSA will be governed by and interpreted in accordance with the laws of the State of Michigan. EFS and Client’s sole and exclusive forum and remedy at law for any disputes arising out of or related to this MSA, including the interpretation thereof, shall be binding arbitration. Arbitration under this MSA will be held in Traverse City, Michigan and will be conducted by a single arbitrator, who shall be randomly selected from the American Arbitration Association National Roster of Arbitrators. The arbitrator shall decide any and all claims in accordance with the laws and legal principals of the State of Michigan and the American Arbitration Association’s most recently effective commercial arbitration rules and shall have the authority to award costs and attorneys’ fees. The losing party will be required to pay the prevailing party’s attorneys’ fees. EFS and Client agree that the determination or award of any such arbitrator or arbitration proceeding may be entered as a judgment in any court sitting within the State of Michigan that has jurisdiction over the subject matter of the dispute. EFS and Client understand and agree that the parties will be required to be present within the State of Michigan in order to perform their obligations under the terms of this MSA. EFS and Client hereby submit to the exclusive personal and subject matter jurisdiction of any such arbitrator or arbitration proceeding.
The waiver by either party of a breach of or a default under any provision of this MSA, must be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this MSA, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
16. Relationship of the Parties
Nothing in this MSA shall be deemed or construed as creating a joint venture, partnership, employment, or fiduciary relationship between the Parties. Neither party has any authority of any kind to bind the other party. The relationship of the Parties is, and at all times shall continue to be, that of independent contractors.
17. Force Majeure
Except for the payment of monies due hereunder, neither Party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, pandemic, Internet or other network “brownouts” or failures, power failures, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. To the extent that a force majeure has continued for ten (10) business days, Client or EFS may cancel the remainder of the PFS, excluding payment obligations, without penalty.
18. Marketing Materials and Testimonials
Client agrees that EFS may identify it as a client in EFS’s client lists and other marketing materials and may use, on a royalty-free basis, Client Materials and that have already been published on the Internet in public case studies and other marketing materials published by EFS. Client also agrees to provide EFS with a testimonial upon the completion of the performance of Services under any applicable PFS (“Testimonial”). Client understands and agrees that EFS may use Client’s Testimonial, on a royalty-free basis, on its website and in other marketing materials.
This MSA may be executed in counterparts, with the same effect as if the Parties had signed the same document. Signed counterparts of this MSA transmitted via email, fax, or electronically are equivalent to a signed original of this MSA.
20. Entire MSA; Modification
This MSA, including any PFS(s), exhibit(s), addendum (addenda) or rider(s) attached hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof, and supersedes (i) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter, and (ii) all past courses of dealing and industry custom. No amendment or modification of any provision of this MSA, exhibit, addendum or rider shall be effective unless in writing and signed by a duly authorized representative of each Party.
IN WITNESS WHEREOF, each Party has caused this MSA to be executed by its duly authorized representative as of the Effective Date.
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Document Name: Master Services Agreement - Updated September 2022
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